### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-31110

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RICARDO NEVARES-BUSTAMANTE, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana

Before HIGGINBOTHAM, STEWART, and HAYNES, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: Ricardo Nevares-Bustamante appeals h is 90-month sentence for illegal reentry. The district court e nhanced his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2009) because, in its view, the defendant unlawfully remained in the United States after being convicted o f a c rime of violence. But Mr. Nevares-Bust a m a te was not ordered removed after that predicate conviction. Whether the sentencing enhancement should apply i s a m a t ter of first impression in this Circuit. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Janu ary25 , 20 12 Lyle W . Cayce Clerk Case: 10-31110 Document: 00511735653 Page: 1 Date Filed: 01/25/2012No. 10-31110 I. Ricardo Nevare s -Bustamante, a Mexican citizen, was removed from the United States on March 1, 1989. About one month later, he illegally reentered 1 the United States by walking through the desert near Calexico, California. On November 29, 1990, he was convicted in Missouri of rape and armed criminal action and was sentenced to 18 years in prison. He served the sentence and was released from the Missouri Department of Corrections on August 26, 2008. The United States Border Patrol was not notified of his release, and no removal order had been issued or reinstated following the 1990 conviction. On June 27, 2009, United States Border Control officers found Nevares-Bustamante sleeping behind a restaurant in Lake Charles, Louisiana. He was taken into custody that day. Nevares-Bustamante pleaded guilty to one count of illegal reentry following deportation in violation of 8 U.S.C. § 1326(a), (b)(2). The presentence report (PSR) recommended enhancing his offense level by 16 levels based on his 1990 Missouri conviction, which the PSR characterized as a crime of violence for
purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). N e vares-Bustamante objected to the PSR, arguing that the 16-level enhancement did not apply because he was not ordered removed from the United States after his 1990 conviction. On July 28, 2 0 1 0 , the district court overruled Nevares-Bustamante’s objection to th e 1 6-level enhancement. The district court found that, after serving the sentence for his 1990 conviction, Nev a res-Bustamante unlawfully remained in the United States for purposes of the sentencing guideline. During the final sentencing hearing, the district court applied the 16-level

e nhancement and calculated a guidelines imprisonment range of 77 t o 9 6 months. The district court then sentenced Nevares-Bustamante to 90 months

H e had been dep ort ed tw ice bef ore , in 1984 aft er a f

elony convic tio n f

or grandt hef

t 1 auto , and in 1986 aft er a fel ony convic tio n for se cond degr ee burglary. The 1989 dep ort atio n wa s bas ed on a t hirdf elony convic tio n, forr ece iving s tol en pr ope rty.

2 Case: 10-31110 Document: 00511735653 Page: 2 Date Filed: 01/25/2012No. 10-31110

of imprisonment and th r e e years of supervised release. Nevares-Bustamante filed a timely notice of appeal. II. This Court reviews the district court’s interpretation of the Sentencing Guidelines de novo. 2 III. On appeal, Nevares-Bustamante contends that the district court erred by enhancing his offense level pursuan t t o U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2009) for unlawfully remaining in the United States after a crime-of-violence conviction. Nevares-Bustamante does not dispute that his 1990 Missouri conviction for rape and armed criminal action constitutes a crime of violence under § 2L1.2(b)(1)(A)(ii). Instead, he argues that the 1 6

- l e v e l enhancement did not apply to him because no removal order issued after his 1990 conviction, nor had any prior removal order been reinstated. We agree. Section 2L1.2(b)(1)(A)(ii) provides for a 16-level enh a ncement “[i]f the defendant . . . unlawfully remained in the United States, after . .

. a conviction for a felony that is

. . . a crime of violence.” The application notes to § 2L1.2 explain that “[a] defendant shall be considered to have unlawfully remained in the Unit e d S t a t e s if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order

was in response to the conviction.” We see no inherent inconsistency between 3 the Guideline and the definition of “unlawfully remained” in its application note, so we treat the application note as authoritative. 4

See Uni ted Sta tes v. Ci sne ros -G utier rez , 517 F.3d751 , 764 (5t h Cir

. 2008)

. 2
U .S .S .G

. § 2 L1.2 cm t. n. 1(A) (ii i). 3
See Stinso n v . Uni ted Sta tes , 508 U. S. 36, 38 (199 3). 4 3 Case: 10-31110 Document: 00511735653 Page: 3 Date Filed: 01/25/2012No. 10-31110

The question then is whether Nevares-Bustamante “remained in the United States following a removal order issued after a conviction .” This Court 5 has not previously been presented with that question, but a case from the First 6 Circuit is analogo u s . In that case, the defendant was deported, illegally 7 returned to the United States, and was subsequently convicted of an aggravated fe lony. Just as in this case, he completed his sentence, was released from

8 custody, and a few months later was arrested and charged with illegal reentry. 9 The Government argued in that case that the defendant “unlawfully ‘remained’ in the United States after his conviction,” reasoning that “his initial deportation could serve as the basis for unlawfully remaining in the country subsequent to his [aggravated felony] c o nviction because 8 U.S.C. § 1326(a) constitutes a continuing offense.” The First Circuit rejected that argument, holding that the 1 0 sentencing enhancement did not a p p ly. It reasoned that the Government’s reading eliminated any temporal l imitations in § 2L1.2, so that “it wouldn’t matter whether the [relevant] removal occurred precedent to or subsequent to the conviction. So long as the defendant had been previously deported , he would

U .S .S .G

. § 2 L1.2 cm t. n. 1(A) (ii i) (em phas is add ed)

. 5
The Go vernm ent poi nts to wh at it adm its is dic tum fr om a Fift h Circ uit opi nion that 6 app ears to reac h out and res olve cas es lik e this one. See Uni ted States v. Bustil los -Pe na , 612 F.3d 863, 869 n.3 (5t h Cir. 2011)

. The Go vernm ent ignore s that the dis cus sio n in that foo tnot e ass ume s that a rem oval ord er had been iss ued fol low ing the rele vant co nvict ion, wh ich wa s not t h e cas e here

. The fac ts of Bustil los -Pe na gave no occ asi on for the Court to add res s the sp ecif ic cir cum st ance pr es ente d here or the app lica tio n note ’s p a r tic ular def init ion of “unla wf ully rem ainedint he Unit ed Sta tes .”
Uni ted Sta tes v. Sa nchez- Mo ta , 319 F.3d1 (1s t Cir. 200 2) (p er curiam). 7
Id. at2. 8
Id. 9
Id. Title 8, § 1326( a) forbids a n alien wh o wa s once rem oved fr om the count ry to 1 0 ret urn to the Unit ed Sta tes w itho ut sp ecia l p erm iss ion. 4 Case: 10-31110 Document: 00511735653 Page: 4 Date Filed: 01/25/2012No. 10-31110

face a sentencing enhancement if he c o m m itted an aggravated felony.” The 1 1 First Circuit further explained that the application note to § 2L1.2 suggests that the enhancement would apply “at most, to an alien wh o (a) commits an aggravated felony, (b) is then subject to an order of deportation or removal, and (c) doesn’t depart but instead remains in the United States unl a wf u l l y . ” In

1 2 contrast, that defendant, like Nevares-B u s t amante, “(a) was removed, (b) returned illegally, and (c) was convicted of [the qualifying offense].” Under the 1 3 First Circuit’s reasoning, the defendant’s multiple prior deportations made no difference; the deportation orders prior to his qualifying conviction did not make his subsequent presence in the United States “unlawful” for the purposes of this Guidelines provision. Without a fresh removal order or reinstatement of a prior removal order, the court concluded, the defendant did not “unlawfully remain[] in the United States following a removal order issued after a conviction.” We 1 4 find the First Circuit’s reasoning persuasive, and we adopt it here. The Go v e r n m e n t’s response to the First Circuit’s reading is a textual argument based on the indefinite article “a” preceding the word “conviction” in the application note. To repeat, the application note to § 2L1.2 provides that “[a] defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued af t e r a c o nviction, regardless of whether the removal order was in response to the convi c t i o n . ” In the Government’s view, the application note does not 1 5 specify whether the “conviction” that precedes the removal order must necessarily be the same conviction on which the enhancement is predicated. The

Id. at3. 1 1
Id. 1 2
Id. 1 3
U .S .S .G

. § 2 L1.2 cm t. n. 1(A) (ii i). 1 4
Id. ( em phas is add ed)

. 1 5 5 Case: 10-31110 Document: 00511735653 Page: 5 Date Filed: 01/25/2012No. 10-31110

Government suggests that the indefinite article “a” before the word “conviction”

means that any prior conviction could serve to predate the removal order, even i f it’s not the qualifying conviction. Moreover, according to this argu m e n t , i t 1 6 would not matter that the prior removal order was unconnected to the predicate conviction because the removal o r d e r n e ed not be “in response to the [e nh anc e m e nt

- qualifying] conviction.” All three of N evare s - Bu s t a m ant e ’ s p rior 1 7 convictions were for aggravated felonies, and he was ordered removed after each of them. Even though those convictions are not the basis for the enhancement,

1 8 the Government contends that they meet the application note’s requirement of

aconviction preceding a removal order. 1 9 Seemingly persuasiv e b e cause of its reliance on the plain terms of the Guideline and its application note, the Government’s readi n g a ctually betrays their language. As it gives a r obust meaning to the indefinite “a,” the Government’s interpretation robs any meaning from the arguabl y more impo rt a nt word “remain,” at least as applied to Nevares-Bustamante. What could it mean to “unlawfully remain [] i n th e U nited States

. . . following a removal order” if the defendant was in fact removed pursuant to that order? Nevares-Bustamante did leave the United States each ti m e h e was ordered removed. To say that he “unlawfully remained” here because he came back later deprives the word “remain” of its natural meaning.

The Go vernm ent did not mak e this argum ent in the Firs t Circ uit cas e beca use ther e 1 6
we re no convic tio ns pr ece ding thatd efe ndant ’s p riorr em oval ord ers . U .S .S .G

. § 2 L1.2 cm t. n. 1(A) (ii i)

. 1 7
See sup rano te 1 an d acc om panying text

. 1 8
In additio n to the text ual analys is, ther e is so me his t o r ical sup por t for the 1 9 Go vernm ent’ s pos itio n. At one tim e, § 2L1.2 mo re clea rly tie d a rem oval ord er to the pr edi cat e fel ony convic tio n. See U. S. S. G. § 2 L 1

. 2 c m t. n.1 (199 7) (“ ‘Rem ained in the Unit ed Sta tes fol low ing a rem oval ord er i s s u e d a f ter a convic tio n,” me ans that the rem oval ord er wa s sub se quent to the convic tio n, wh ethe r or not the rem o v al ord er wa s in res pons e to suc h convic tio n.”( em phas is add ed) ). 6 Case: 10-31110 Document: 00511735653 Page: 6 Date Filed: 01/25/2012No. 10-31110

In sum, we hold that a defendant alleged to have unlawfully remained in the United States following a qualifying conviction under U.S.S.G. § 2L1.2(b)(1)(A) i s s ubject to the § 2L1.2(b)(1)(A) enhancement only when a removal order is issued or reinstated after that conviction. IV. Mr. Nevares-Bustaman t e ’ s sentence is VACATED, and this case is REMANDED for a new sentencing proceeding cons i s t e n t with this Court’s opinion.

7 Case: 10-31110 Document: 00511735653 Page: 7 Date Filed: 01/25/2012No. 10-31110

HAYNES, Circuit Judge, specially concurring: Using only the language of the Guideline, i t w o u l d seem that NevaresBustamante “unlawfully remained in the United States” after a qualifying conviction. U.S.S.G. § 2L1.2(b)(1)(A). He was convicted of a “crime of violence,” he was dis ch ar ge d f

ro m p ri s o n , and he “remained” in the United States—without any permission from the Attorney General or any other semblance of legal authority—for almost a year after his release. If we could stop there, we would likely affirm. Wh a t causes this case to be more complex is the language of the application note: “[a] defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order

was in response to the conviction.” Id. § 2 L 1

. 2 cmt. n.1(A)(iii). I agree that Nevares-Bustamante did not “remain” in th e United States following the issuance or reinstatement of a removal order; he left each time he previously was ordered removed, returning only later. Thus, under the application note, we should reverse. Faced with two potentially contr a di c t ory outcomes, we must decide whether the application note is authoritative here. Stinson holds that commentary such as the application note are authoritative unless “inconsistent with, or a plainly erroneous reading of” th e Guideline. See Stinson v. United States , 508 U.S. 36, 38 (1993). The question then becomes whether the note is, in fact, inconsistent with or a plainly erroneous reading of the Guideline. I conclude that it is not. A s construed by the majority opinion, the application note provides a definition of “unlawfully remain e d” that is consonant

w i th the Guideline, objective, and relatively easy to verify. Requiring the issuance or reinstatement of a removal order also avoids the necessity of mining the murky depths of immigration law to determine the “u n l a w f ulness” of a defendant’s “remaining.” As such, I cannot find the applica t i o n n o t e to be
8 Case: 10-31110 Document: 00511735653 Page: 8 Date Filed: 01/25/2012No. 10-31110

“inconsistent” or “plainly erroneous,” although I do find it somewhat conceptually incongruous with a commonsense understanding of what it means to “unlawfully remain in the United States” after a conviction. Mindful of Stinson ’s teaching, however, I am obliged to concur in the majority’s opinion. 1

Stinso n als o pr ovide s that Gu ide lines com me ntary “is autho rit ative unles s it violat es 1 the Cons tit utio n or a f ede ral st atut e.” 508 U. S. at 38. The Go vernm ent mad e no argum ent thatt he app lica tio n no te runs af oul of th is asp ectof Stinso n ’s ho ldi ng. Ac cor dingly, ne ithe r the majo rit y opi nion nor this conc urr ence add res se s wh ethe r the app licatio n note at iss ue here may “viol ate[] the Cons tit utio n o r a f ede ral st atut e.” Id. 9 Case: 10-31110 Document: 00511735653 Page: 9 Date Filed: 01/25/2012